Anti-bullying laws might be used by employees facing a
potentially adverse disciplinary process to delay or halt
it.

A recent Fair Work Commission case illustrates an innovative way
in which the Commission's anti-bullying jurisdiction can be
used to powerful effect by employees facing disciplinary
proceedings - and opened a Pandora's Box for employers.

In Lynette Bayly [2017] FWC 1886, the Commission issued an
interim order preventing an employer from taking any further steps
to finalise an investigation into the conduct of an employee,
impose any disciplinary sanction on the employee arising from the
investigation or terminate the employment of the employee.

Interplay between claims of bullying and the
investigation: Ms Bayly applies for an interim order

Ms Bayly had made a "stop bullying" application to the
Commission alleging she had been subject to bullying at work. The
alleged bullying included the investigation by the employer into
her conduct.

Notwithstanding the application, the employer continued its
investigation and, as part of that process, told her that draft
findings had been made. She was then stood down and directed to
attend a meeting to give her response to the draft findings. The
investigation would then be concluded and any disciplinary outcomes
of the investigation determined.

Shortly thereafter, Ms Bayly's lawyers wrote to the employer
indicating she was certified unfit for work for a period that
extended beyond the date of the proposed meeting. On this basis
they sought an undertaking from the employer that it would not
require her to provide a response, attend a meeting or impose any
disciplinary sanction in respect of the allegations under
investigation. The employer declined, affirming its intention to
proceed with the disciplinary process.

This led to Ms Bayly seeking an interim order from the
Commission preventing her employer from continuing with the
investigation, or from taking any disciplinary action arising from
it, pending the determination of the substantive bullying claim.
The interim order was sought under section 589(2) of the Fair Work
Act which is in the following (simple) terms:

"The FWC may make an interim
decision in relation to a matter before it."

Can the interim order be made?

The employer opposed the interim order on a number of bases,
including that:

Ms Bayly had not provided a substantive response to the
investigation;

the investigation was being conducted in a "reasonable
manner";

any interim order made by the Commission in the exercise of its
anti-bullying jurisdiction must be directed towards preventing a
worker from being bullied at work;

the draft findings of the investigation are adverse to Ms
Bayly; and

if Ms Bayly were to be dismissed, she has other remedies
available to her.

In effect, said the employer, the Commission was being asked to
prospectively injunct the employer from dismissing the employee. As
stated in the judgment,

"That is, to essentially use the
anti-bullying jurisdiction to step in and prevent a possible
adverse action, without consideration as to whether that dismissal
is justified. The orders sought go beyond what would
ordinarily be available in relation to an anti-bullying application
and should not be made." [emphasis added]

It did not, however, say that the Commission had no power to
make the order.

Commissioner Hampton started from the basis that he could only
make an interim order if there is a serious issue to be tried and
after determining where "the balance of convenience"
lies. He then observed:

"It also appears to me that the
consideration of the prima facie case and the balance of
convenience must be assessed having regard to the nature of the
substantive application, the jurisdictional context in which the
application is being considered, and the circumstances of the
parties.

In a matter such as this, I also consider that the nature of the
remedy provisions of s. 789FF of the Act [the anti-bullying
provisions] should inform the consideration of the request for
interim orders and the nature of any discretion to be exercised.
However, the purpose of the interim orders, including to preserve
the capacity to advance the substantive application in appropriate
circumstances, must also be considered."

Should the interim order be made?

The next issue was looking at the particular circumstances of
this case. The Commission took into consideration:

claims made in the substantive anti-bullying application about
the retrospectivity of the conduct allegations;

the fact preliminary adverse findings had been reached against
Ms Bayly;

Ms Bayly's medical condition;

concerns expressed about the employer's process and stated
intention to finalise the investigation and make a decision on
disciplinary action which could include dismissal of
employment.

Commissioner Hampton was satisfied

"... that the s. 789FC
application [the anti-bullying provision] has prima facie merit and
there is sufficient likelihood of success to justify the
preservation of the status quo pending further consideration and
determination of the substantive matter by the Commission. The
allegations made by [the employee], if ultimately supported by
evidence, would be grounds to support a finding that there was
reported unreasonable conduct whilst she was at work within the
meaning of s. 789FD of the Act. Adopting the same caveat, those
circumstances would also suggest that a relevant risk to health and
safety arose."

Interestingly, a key aspect of the anti-bullying jurisdiction -
that no orders can be made once the employment relationship is at
an end (except in very limited circumstances) - was identified
as,

"...a significant factor
directly relevant to the balance of convenience and the exercise of
any discretion".

Commissioner Hampton recognised that circumstances might change
the balance of convenience, so the interim orders might need to be
reviewed.

How does this affect future disciplinary
proceedings?

This decision is a very interesting development - and one that
should be watched carefully by employers. It may well be a portent
of what is to come for employers undertaking investigations and
disciplinary processes.

The interim order has effectively halted (for the time being)
the employer's disciplinary process. The likely next step is
the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the
courthouse if there is a potentially adverse disciplinary process?
Commissioner Hampton did have some general words of caution for
employees (or their representatives):

"given the scheme of the Act,
interim orders of the nature being considered here would not be
issued lightly. The direct intervention of the Commission at such
an early stage of proceedings should be exercised with considerable
caution. Further, the mere indication that a disciplinary process
was involved in the complaints of workplace bullying, without much
more, is unlikely to trigger the balance of convenience for such
action. Of course, each application must be considered in its own
right and circumstances.

As [the employer] contended, the
Commission should be alert as to the undesirability of permitting
the anti-bullying jurisdiction to simply be used to circumvent
reasonable disciplinary action and its consequences. In this case,
there are some particular circumstances that have justified the
making of the interim order."

Notwithstanding Commissioner Hampton's words of caution, it
would not be surprising to see many applications of this kind in
the context of disciplinary proceedings.

To put themselves in the best position to defend such
applications employers should :

ensure any investigation is conducted fairly and objectively
and does not, in the way it is undertaken, of itself constitute
bullying (ie. it is "reasonable management action carried out
in a reasonable manner");

be able to demonstrate adverse consequences if a disciplinary
proceeding is delayed by the making of such an interim order
(including impact on other staff in the organisation and the
integrity and efficacy of disciplinary processes).

RELATED KNOWLEDGE

Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
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